Kokkinakis and the Narratives of Proper and Improper Proselytizing

Religion Religion and Human Rights 12 (2017) 99–111 Human Rights brill.com/rhrs

Brett G. Scharffs Rex E. Lee Chair and Professor of Law, Brigham Young University Law School, Provo, Utah, United States

Abstract

This article explores how the European Court of Human Rights (ECtHR) distinguishes between proper and improper proselytizing. It points out the importance of the competing factual narratives and how the way the facts are presented can determine how the Court responds to the proselytizing activity.

Keywords

Kokkinakis – proselytizing – proselyting – proper proselyting – improper proselytism – European Court of Human Rights (ECtHR) – Article 9

1 Introduction

One of the central moves by the European Court of Human Rights in Kokkinakis v. Greece is the distinction the Court (Court or ECtHR) makes between proper and improper proselytizing, a distinction that has bedevilled the Freedom of Religion and Belief (FoRB) jurisprudence of the Court over the subsequent twenty-five years. This is remarkable because the distinction did not exist in the Greek statute prohibiting “proselytism” or the underlying Greek Constitutional prohibition of proselytism. The distinction between proper and improper proselytizing has been important not only in subsequent cases directly involving missionary activities, but also in cases involving potent religious symbols such as the Islamic headscarf and Christian crucifix.

This paper will focus on the influence of this hermeneutic move in two pri- mary ways. First, the distinction encourages the development of what I will call the competing “Proper Proselyting Narrative” and the “Improper Proselytism Counter-Narrative.”1 The Proper Proselyting Narrative sees missionary activity as a normal and even central element of freedom of thought, conscience, and religion, closely related to the core Article 9 right to change one’s religion or belief. The Improper Proselytism Counter-Narrative sees missionary activity as a dark and dangerous intrusion upon the religious freedom of adherents of majority religions, as often coercive, and a looming violation of the (imagined?) right to be left alone.2 These two narratives assert themselves as competing tellings of what actually happened in the case—two alternative sets of facts.3 Second, these competing narratives also provide the background framework for subsequent cases involving not only direct efforts at proselytizing, but also in cases involving religious symbols that are either said to have, or not have, proselytizing potentials or effects.4

1 See infra, section 3. 2 In the Universal Declaration of Human Rights debates, the Greek delegate expressed his con- cern about proselytizing practices he observed in other countries: ‘Free lodgings, material assistance and a number of other advantages were offered to persons who agreed to belong to one religion or another … [The] danger of such unfair practices was a threat, not only to the minority groups of a given country … but also to the religious majority. While, admit- tedly, every person should be free to accept or reject the religious propaganda to which he was subjected, [he] felt that an end should be put to such unfair competition in the sphere of religion’. U.N. GAOR, 3d. Sess., 127th mtg. U.N. Doc. A/C.3/SR, 127, at 393–394 (Statement of Ambassador Alexander Contoumas, Representative of Greece). 3 For years post-modernists have been telling us there is no such thing as “fact,” but in our “post-truth” political moment, the importance of shared understandings of what actually happened when talking about an event that has occurred in the past is widely acknowledged. Post-modernists like Jacques Lacan, Michel Foucault and Derrida say, ‘Ideas like those of “reason” and “truth” are the fictions of the Enlightenment. Ideas about humans and society which we assume to be permanent truths change over time’. Terry Eagleton, The Illusions of Postmodernism (Oxford; Blackwell, 1996), p. 135. After the White House press secretary accused the news media of reporting falsehoods about the Trump and Obama inaugura- tion crowds and their relative size, Kellyanne Conway, a counsellor to President Trump said on NBC’s “Meet the Press” that ‘the White House had put forth “alternative facts” to ones reported by the news media’. Nicholas Fandos, ‘White House Pushes “Alternative Facts.” Here Are the Real Ones’, The New York Times, 22 January 2017, p. A15. 4 See infra, section 4.

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2 Setting the Stage

Article 3 of the 1975 Greek Constitution provides, ‘[t]he dominant religion in Greece is that of the Christian Eastern Orthodox Church’.5 Article 13 states that, ‘[f]reedom of conscience in religious matters is inviolable’, and guaran- tees the ‘freedom to practise any known religion’, and that the ‘ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion’.6 For purposes of the Kokkinakis case, the most important Constitutional provision appears in paragraph 2 of Article 13, which states simply, ‘[p]roselytism is prohibited’.7 The Constitution, however, does not define proselytism. Section 4 of a 1938 Greek law makes proselytism a criminal offense,8 and the meaning of proselytism was clarified in a 1939 amendment to the law, which provides:

By “proselytism” is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety.9

5 Greek Constitution of 1975, Art. 3, cited in European Court of Human Rights, Kokkinakis v. Greece, Application No. 14307/88, 25 May 1993, para. 13. The paramount place of the Greek Orthodox Church under the Greek Constitution is evident throughout paragraph 3 of the Constitution. Paragraph one of Article 3 continues, ‘[t]he Greek Orthodox Church, which recognizes as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodi- cal canons and the holy traditions…’. Paragraph 2 provides, ‘[t]he ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph’. Paragraph 3 provides, ‘the text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the Autocephalous Greek Church and the Great Christian Church at Constantinople’. 6 Greek Constitution of 1975, Art. 13. What constitutes a “known” religion is not defined in the Constitution. Article 13, para. 4 also appears to prohibit accommodations of religion and exemptions from laws on account of religion: ‘[n]o one may be exempted from discharg- ing his obligations to the State or refuse to comply with the law by reason of his religious convictions’. 7 Greek Constitution of 1975, Art. 13, para. 2 (cited in Kokkinakis, para. 13). 8 Law no. 1363/1938, sec. 4 (anagastikos nomos) (cited in Kokkinakis, para. 16). 9 Law no. 1672/1939, sec. 2 (cited in Kokkinakis, para. 16).

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This prohibition on both ‘direct or indirect’ attempts to ‘intrude on the religious beliefs’ of another person with the aim of ‘undermining those beliefs’ by ‘taking advantage’ of a listener’s ‘inexperience, trust, need, low intellect or naivety’ is the closest the law comes to defining what counts as unlawful proselytism. The provision is noteworthy for its breadth and reach, targeting both ‘direct and indirect’ intrusions on the beliefs of someone who belongs to a different religion (logically, this would include all intrusions, which could mean any effort to persuade). Many aims are impermissible, including any ‘aim of undermining’ another’s beliefs (again, might any effort to persuade another of anything might undermine their beliefs?); any kind of “inducement” (does the promise of “salvation” or “eternal life” count as an inducement? Does feeding the hun- gry or clothing the naked?), or “moral support” (does visiting those in prison constitute impermissible moral support?) or “material assistance” (again, food or clothing?), or “fraud” (do not many religious beliefs appear preposterous to outsiders?), or “taking advantage” of another’s vulnerabilities based upon ‘inexperience, trust, need, low intellect or naïvety’ (what about teaching children, or young adults? What if everyone needs salvation?).10 Mr. Kokkinakis was convicted of proselytism under Section 4, exhausted his domestic appeals, and applied to the ECtHR on the grounds, among others, that his conviction violated Article 9 of the European Convention on Human Rights.11

10 As Danchin points out, ‘[B]oth the proselytizer and the target of proselytism can advance rights claims based on freedom of religion or beliefs that are in conflict with each other’. Peter G. Danchin, ‘Of Propehts and Proselytes: Freedom of Religion and the Conflict of Rights in International Law’, Harvard International Law Journal (2008), pp. 250–321, at p. 266. 11 See Kokkinakis, para. 27. The European Convention on Human Rights, Art. 9 provides: ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in com- munity with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’.

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3 The Proper Proselyting Narrative and Improper Proselytism Counter-Narrative

The first lesson I remember learning as a first-year law student was that, as my torts professor Peter Schuck put it, ‘[h]e who determines the facts wins the case’. This maxim made an impression on me as a neophyte to the study of law, because I had been raised on John Adam’s maxim that ‘facts are stubborn things’.12 The Kokkinakis case is noteworthy for the diametrically different versions of the facts that are provided in the various accounts of the case. The first narrative is what I will call the Proper Proselyting Narrative, which treats missionary activities as a normal and central component of freedom of thought, conscience and religion that is protected by Article 9. This narrative is evident in the opinion of the Court, in the testimony of Mrs. Kyriakaki, and especially in the concurring opinions of Judges Pettiti and De Meyer, and in the partly dissenting opinion of Judge Martens. The second narrative is what I will call the Improper Proselytism Counter-Narrative, which views missionary activities as a kind of dark and deceptive art. It is evident in the Greek trial court and appeals court decisions, and especially in the ECHR dissenting opinion of Judge Valticos.

3.1 The Court’s Proper Proselyting Narrative—First Iteration We first encounter the Proper Proselyting Narrative near the beginning of the opinion in the Court’s initial description of the facts of the case, which are stated in a clear, precise and minimalist fashion:

Mr Minos Kokkinakis, a retired businessman of Greek nationality, was born into an Orthodox family at Sitia (Crete) in 1919. After becoming a Jehovah’s Witness in 1936, he was arrested more than sixty times for proselytism. He was also interned and imprisoned on several occasions … On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her. Mrs Kyriakaki’s husband, who was the cantor at a local Orthodox church, informed the police, who arrested Mr and Mrs Kokkinakis and took them to the local police station, where they spent the night of 2–3 March 1986.13

12 John Adams, Argument in Defense of the Soldiers in the Boston Massacre Trials (December 1770). 13 Kokkinakis, paras. 6–7.

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This account is a sober ‘just the facts, ma’am’ approach to judicial storytelling. There is almost nothing in the way of characterization, elaboration, or commentary. Indeed, the account hardly contains an adjective much less an adverb.

3.2 The Greek Courts’ Improper Proselytism Counter-Narrative The Improper Proselytism Counter-Narrative is first introduced in the Lasithi Criminal Court’s initial judgment convicting Mr. and Mrs. Kokkinakis of proselytism. This account is also rather spare, and it consists largely in the court’s simply aligning the behaviour of Mr. and Mrs. Kokkinakis with the provisions of Section 4 of the law prohibiting proselytism:

[The defendants], who belong to the Jehovah’s Witnesses sect, attempted to proselytize and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] … and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encourag- ing her by means of their judicious, skilful explanations … to change her Orthodox Christian beliefs.14

The Improper Proselytism Counter-Narrative is different in that it emphasiz- es the idea that the purpose of the visit was to “undermin[e]” the beliefs of Mrs. Kyriakaki by “taking advantage” of her “low intellect” and “naïvety.” The Kokkinakises’ manner is characterized by the Court as being “insisting” and “pressing” and their explanations are described as “judicious” and “skilful.” This Improper Proselytism Counter-Narrative is elaborated by the Crete Court of Appeals, which dropped the charges against Mrs. Kokkinakis, and fo- cused on Mr. Kokkinakis’ behaviour. The Court of Appeals repeats the characterization of the trial court, and adds further explanation:

More specifically, at the time and place indicated in the operative provision, [Mr Kokkinakis] visited Mrs Georgia Kyriakaki and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding

14 Ibid., para. 9.

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pacifist views. He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out pas- sages from Holy Scripture, which he skillfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs.15

The Court of Appeals elaborates on Mr. Kokkinakis’ persistence (he ‘pressed her to let him into the house’), characterizes his analysis of scripture as “skilful,” which overwhelmed Mrs. Kyriakaki, who could not challenge him ‘for want of adequate grounding in doctrine’. Mr. Kokkinakis is described as “importunately” attempting to ‘undermine her religious beliefs’. A dissenting opinion at the Court of Appeals would have acquitted the defendant on the grounds that there was no evidence that Mrs. Kyriakaki was ‘particularly inexperienced in Orthodox Christian doctrine, being married to a cantor, or of particularly low intellect or particularly naïve …’16 For her part, Mrs. Kyriakaki quite understandably seemed to want no part of the Improper Proselytism Counter-Narrative, which depended upon characterizing her as unintelligent, naïve and vulnerable. In her testimony, she recalled the Kokkinakises talking about Olof Palme, as well as some other subjects she could not really remember. She characterized it as not much of a discussion, but rather a ‘constant monologue by them’. She said she would not have let them in if she had known they were Jehovah’s Witnesses. Nothing they said seems to have made much of an impression on her. ‘They stayed at the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don’t know why they told it to me’. She said she did not understand ‘at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs … [However,] the discussion did not influence my beliefs’.17 According to her account, Mrs. Kyriakaki does not appear to be particularly inexperienced, trusting, needy, of low intellect, or naïve. She does seem rather unimpressed and uninterested in the message, which she barely remembered. According to her account, the Kokkinakises did not influence her beliefs.

15 Ibid., para. 10. 16 Ibid. 17 Ibid.

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3.3 The European Court of Human Rights Analysis of the Facts—The Proper Proselyting Narrative Renewed For its part, the European Court of Human Rights characterizes the behaviour of Mr. Kokkinakis as reflecting the Proper Proselyting Narrative rather than the Improper Proselytism Counter-Narrative. The Court quickly concludes that the conviction was an interference with Mr. Kokkinakis’s Article 9 right to manifest his religion or belief,18 that the interference was prescribed by law,19 and that it pursued a legitimate aim,20 namely the protection of the rights and freedoms of others.21 The Court’s analysis turns on the question of whether the interference was “necessary in a democratic society.”22 Here the Court focuses on the margin of appreciation given to contracting states to assess the necessity of an interference as well as the importance of European supervision, which focuses on whether the measures taken at the national level were “justified in principle and proportionate.”23 The Court’s analysis turns on the distinction it makes between what can be characterized as “proper” and “improper” proselytizing. The key language is as follows:

First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism … The latter represents a corruption or deformation of it. It may … take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper

18 Ibid., para. 36. 19 Ibid., para. 37–41. 20 Kendal Davis says this case ‘reflect[s] the ECHR’s inclination to accept member states’ arguments about what constitutes a legitimate aim, even where ulterior illegitimate motives, such as religious suppression, may also exist’. Kendal Davis, ‘The Veil That Covered France’s Eye: The Right to Freedom of Religion and Equal Treatment in Immigration and Naturalization Proceedings’, Nevada Law Journal (2010), pp. 751–753, at p. 753. 21 Ibid., para. 42–43. 22 Ibid., para. 45–50. 23 Ibid., para. 47. Adamantia Pollis this rationalization in the Greek psyche with ‘the Greek conception of ethnos, whereby Greeks are united in a transcendent holistic entity that can provide the rationale for restrictions on the exercise of individual rights. In the modern era, the ethnos, as embodied in the state, possesses the power to determine the req- uisite actions and behaviour demanded of an individual for the fulfilment of his or her obligations to national solidarity’. Adamantia Pollis, ‘Greek National Identity: Religious Minorities, Rights, and European Norms’, Journal of Modern Greek Studies (1992), pp. 171– 196, p. 179.

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pressure on people in distress or need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.24

Proper Proselyting is equated with ‘’bearing Christian witness’ and “true evangelism.” Improper Proselytism is characterized as a ‘corruption or deformation’, and is associated with ‘offering material or social advantages’ to win members, or ‘exerting improper pressure on people in distress or need’, and culminates in the twin evils of “violence or brainwashing.” The Court asserts that the Greek statute is reconcilable with Article 9 inso- far as it is ‘designed only to punish improper proselytism’, which the Court says it ‘does not have to define in the abstract in the present case’.25 The Court notes that the Greek courts did not offer evidence that the Mr. Kokkinakis’ proselytizing was “improper.” The Greek courts merely reproduced the wording of section 4, ‘and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means’.26 Thus, the Court concludes that the conviction was not ‘proportionate to the legitimate aim pursued or, consequently, ‘necessary in a democratic society … for the protection of the rights and freedoms of others’.27 Here the Court engages in a two-step move of amendment and evasion. It amends the Greek statute’s prohibition of “proselytism” to be a prohibition of

24 Ibid., para. 48. 25 Ibid. 26 Ibid., para. 49. 27 Ibid. A much more straightforward and sensible way of resolving the case was suggested by Judge Pettiti in his partly concurring opinion. Judge Pettiti would have held that the Greek law contravened Article 9 due to its vagueness, ‘lack of any clear definition of proselytism’ and the ‘haziness of the definition’ of what counts as proselytism, which ‘leaves too wide a margin of interpretation for determining criminal penalties’. Judge Pettiti decries retaining legislation ‘that provides for vague criminal offenses which leave it to the court’s subjective assessment whether a defendant is convicted or acquitted’. Judge Pettiti points out that ordinary criminal law can be used to address “coercive acts,” to protect minors, as well as to address violence and brainwashing. Judge Pettiti states, ‘[a] ttempting to make converts is not in itself an attack on the freedom and beliefs of others or an infringement of their rights’. He notes that the Greek statute, and the decisions of the Greek courts, provide ‘no dividing line’ between ‘bearing witness, proclaiming one’s faith or religious persuasion, and coercion’. Judge Pettiti notes, ‘[s]etting up a sys- tem of criminal prosecution and punishment without safeguards is a perilous undertak- ing, and the authoritarian regimes which, while proclaiming freedom of religion in their Constitutions, have restricted it by means of criminal offenses of parasitism, subversion or proselytism have given rise to abuses with which we are all too familiar’.

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“improper proselytism,” and then declines to define what counts as “improper.” The following twenty-five-year history of the Court’s jurisprudence concerning proselytizing can be seen as a consequence of this two-step move.

3.4 The Concurring Opinion of Judge De Meyer and the Partly Dissenting Opinion of Judge Martens—Strong Versions of the Proper Proselyting Narrative Judge De Meyer is even more clear than the majority in characterizing the facts as fitting within the Proper Proselyting Narrative. He notes that proselytism, which he defines as ‘zeal in spreading the faith’, cannot be punishable as such: it is a way—perfectly legitimate in itself—of ‘manifesting [one’s] religion’. He concludes that Mr. Kokkinakis was ‘convicted only for having shown such zeal, without any impropriety on his part’. His only offense was to try ‘to get Mrs. Kyriakaki to share his religious beliefs’. She invited him into her house, did not ask him to leave, and listened to what he had to say, ‘while awaiting the arrival of the police, who had been alerted by her husband …’ Thus, Judge De Meyer would have held that the Greek law itself violated Article 9. Judge Martens concurs with the Court’s judgment concerning Article 9, but would have held that there was a violation of Article 7 as well, which states, ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed’.28 Judge Martens characterizes the Kokkinakis’s visit as

a normal and perfectly inoffensive call by two elderly Jehovah’s Witnesses (the applicant was 77 at the time) trying to sell some of the sect’s booklets to a lady who, instead of closing the door, allowed the old couple entry….

Both Judge De Meyer’s and Judge Martens’ approaches would not have read into the statute a distinction between proper and improper proselytizing, and

28 Ibid., partly dissenting opinion of Judge Martens. The European Convention on Human Rights, Art. 7 states: ‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations’.

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3.5 The Dissenting Opinion of Judge Valticos—The Improper Proselytism Counter-Narrative on Steroids At the other extreme is the opinion of the Greek Judge, Judge Valticos, who is nearly hysterical in his characterization of the facts of the case as indicating Improper Proselytism. His characterization is so over-the-top that it is worth quoting at length:

Let us look now at the facts of the case. On the one hand, we have a mil- itant Jehovah’s Witness, a hardbitten adept of proselytism, a specialist in conversion, a martyr of the criminal courts whose earlier convictions have served only to harden him in his militancy, and, on the other hand, the ideal victim, a naïve woman, the wife of a cantor in the Orthodox Church (if he manages to convert her, what a triumph!). He swoops on her, trumpets that he has good news for her (the play on words is obvious, but no doubt not to her), manages to get himself let in and, as an expe- rienced commercial traveller and cunning purveyor of a faith he wants to spread, expounds to her his intellectual wares cunningly wrapped up in a mantle of universal peace and radiant happiness. Who, indeed, would not like peace and happiness? But is this the mere exposition of Mr Kokkinakis’s beliefs or is it not rather an attempt to beguile the simple soul of the cantor’s wife? Does the Convention afford its protection to such undertakings? Certainly not.29

Judge Valticos actually goes even further in portraying Mr. Kokkinakis’s activities as an extreme form of Improper Proselytism, characterizing it as the ‘rape of the beliefs of others’, and as a case of ‘systematic, persistent campaigns en- tailing actions bordering on unlawful entry’.30

29 Ibid., dissenting opinion of Judge Valticos. 30 Ibid., dissenting opinion of Judge Valticos. In an act of extraordinary lack of self- awareness, Judge Valticos then accuses other judges of a ‘number of exaggerations’ in their characterization of the facts, before asserting that ‘faith can sometimes be blind and attempts to spread it can be overzealous’, leading to ‘inquisitions’, and decrying those who ‘under the influence of fanaticism, [resort] to all kinds of tactics to obtain conversions, sometimes with tragic results …’.

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4 Conclusion

Two things are worth noting. First, the Court imposes a distinction between “proper” proselyting and “improper” proselytism upon the Greek statute and Constitution, a distinction that does not exist in these laws. This has the effect of preserving a criminal law that is overbroad, vague, and leaves too much discretion to prosecutors and judges, while holding that the application of the law in this case was a violation of Article 9. This resulted in the unusual situ- ation where both sides subsequently claimed defeat (rather than victory) in the case—the lawyers for Mr. Kokkinakis claimed defeat, because the Greek law was allowed to stand;31 and the lawyers for the Greek government claimed defeat, because the conviction of Mr. Kokkinakis was reversed by the ECtHR. Second, the Court compounds this imposition by failing to define clearly the difference between what is proper and improper. In the various accounts of the facts of the case, we see wildly diverging versions of what actually happened as well as of the significance of those facts. Thus, the case stands as a cautionary tale not only of the hazards of judicial storytelling, but also of the power of judicial law-making. It is not surprising that with such a shaky foun- dation, the Court prepares the way for subsequent jurisprudence on proselytizing that is unstable, unprincipled, and inconsistent.32 The Kokkinakis legacy regarding proselytizing has carried forward into subsequent ECHR FoRB cases. The test of whether limits on proselytism were

31 Taylor states, ‘It may be said that the European Court in Kokkinakis was simply reiterat- ing the need to respect forum internum rights by ensuring that they be protected against interference’. Paul M. Taylor, ‘The Questionable Grounds of Objections to Proselytism and Certain Other Forms of Religious Expression’, BYU Law Review (2006), pp. 811–834, at p. 830. For further criticism of the criminalization of proselytism in Greece, see Kyriakos N. Kyriazopoulos, ‘Proselytization in Greece: Criminal Offenses vs. Religious Persuasion and Equality’, Journal of Law and Religion (2004–2005), pp. 150–217, at p. 159: ‘The crime of proselytization expresses and materializes the Greek Orthodox nationalistic ideology and policy. This was its expression when it was enacted at the time of the nationalistic and fascist dictatorship of Ioannis Metaxas. Decades after this dictatorship, it still has this meaning—in fact, it does so even under democratic governments, which do not appear to be eager to abolish it’. 32 See also Keturah A. Dunne, ‘Addressing Religious Intolerance in Europe: The Limited Application of Article 9 of the European Convention of Human Rights and Fundamental Freedoms’, California Western International Law Journal (1999), pp. 118–157, at p. 139: ‘The lack of delineated rationale accompanying the Kokkinakis decision suggests that the European Court has continued to treat rights of conscience as ‘an awkward inconve- nience to be tolerated rather than as a matter of fundamental importance’.

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necessary in a democratic society continued in Larissis by using the same proper versus improper proselytism test invoked in Kokkinakis. Principles originally announced in these Greek proselytism cases have taken on a new importance as, in the last decade, the Islamic headscarf has become a highly politicized religious symbol throughout Europe. Because of its “proselytizing” effect, the Court has continued to use a similar analysis established in Kokkinakis in de- ciding whether the allowance, or banning, of the headscarf is, again, necessary in a democratic society. No doubt with the current political climate in Europe, this issue of the headscarf, and likely other proselytism issues, will continue to be an issue the European Court must grapple with in the future.

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